Property Law and Real Estate Commons^™

Redefining Stewardship Over Body Parts , Elizabeth E. Appel Blue

Journal of Law and Health

This paper proposes one possible avenue for defining a framework to address body parts. I begin with the presumption that given the increasing use of body parts outside of our bodies, either after death or during life, society requires a framework with institutions and rules to govern our body parts. Yet there is no settled framework. Much of the controversy over differing approaches stems from whether people should be able to sell body parts. Thus, each potential framework implicitly addresses the question of monetary value. While multiple possibilities exist, the predominant models are (1) property, most often meaning ownership that …

Catching The Unique Rabbit: Why Pets Should Be Reclassified As Inimitable Property Under The Law, Kelly Wilson

Cleveland State Law Review

This Note introduces a new approach for resolving the issue of inadequate compensation for pet loss by arguing for the adoption of a new classification of personal property called inimitable property. The new categorization takes into consideration the live, conscious, and unique qualities of pets that distinguish them from other sorts of inanimate property.

Children Of Men: Balancing The Inheritance Rights Of Marital And Non-Marital Children, Browne C. Lewis

Law Faculty Articles and Essays

Average U.S. citizens are routinely having children out of wedlock. In America, at least one out of every three babies born is a non-marital child. As more and more children continue to be born out of wedlock, society must enact laws to protect the interests of those children. They are the children of men and they are entitled to financial support both during the lives and after the deaths of their parents.

Part II of this article briefly discusses the historical treatment of non-marital children. Part Ill explores the modem legal treatment of non-marital children, which consists of three distinct …

Kelo V. City Of New London: A Reduction Of Property Rights But A Tool To Combat Urban Sprawl, Gregory V. Jolivette Jr.

Cleveland State Law Review

This Note will analyze the two opposing interests of property owners and of cities in the context of the Supreme Court's Public Use Clause jurisprudence and show that while the Court's decision in Kelo may have diminished property rights, the decision could render an overriding positive impact on combating urban sprawl. Part II defines urban sprawl and identifies some of its associated costs. Part III briefly describes Public Use Clause jurisprudence prior to the Supreme Court's ruling in Kelo. Part IV discusses the Court's opinion in Kelo and Justice Kennedy's concurrence. Part V examines the substantial criticism of Kelo and …

Disclosure Protection: Franchises And Food Court Leases, James R. Cataland

Cleveland State Law Review

The shopping center industry continues to enjoy relative freedom from governmental regulation and operates within the framework of a long term, well established body of favorable commercial landlord/tenant law. Conversely, certain "'unfair and deceptive practices" in the sale of franchises have led to comprehensive consumer protection legislation at both the state and federal level. In 1978, the Federal Trade Commission promulgated a series of uniform disclosure requirements that a franchise or business opportunity seller must make when soliciting a prospective buyer. Often, the prospective buyer of a fast food franchise is an unsophisticated husband and wife, owner/operator, commonly referred to …

Propertization, Contract, Competition, And Communication: Law's Struggle To Adapt To The Transformative Powers Of The Internet, David R. Barnhizer

Law Faculty Articles and Essays

This Symposium focuses in part on the ideas of Margaret Radin as a point of departure for the various contributions. A key part of the analysis includes the process she calls propertization in the context of intellectual property rules and the Internet. The approach taken in this introductory essay is twofold. The first part presents some key points raised by the Symposium contributors. Of course, that overview is necessarily incomplete, because the contributions represent a rich group of analyses about vital concerns relating to how our legal system should respond to the challenge of the Internet and information systems through …

Ariadne's Thread: Leading Students Into And Out Of The Labyrinth Of The Rule Against Perpetuities , Maureen E. Markey

Cleveland State Law Review

This Article focuses partly on my own approach to teaching the Rule Against Perpetuities, but it addresses the approaches of others based on the survey responses. Although I have developed a method that works fairly well for my classes, I am always open to suggestions from others for modifying and improving that approach. Of course, a single method, no matter how good it appears to be, will not work for everyone. Therefore, I have incorporated a number of approaches into this Article so that those wanting to develop or improve their teaching of the Rule can pick and choose among …

Land, Labor And Reparations, Guadalupe T. Luna Northern Illinois University

Cleveland State Law Review

Kim David Chanbonpin and Ronald L. Mize, Jr. bring to LatCrit two legal historical essays that connect property and labor issues to the present. The first draws from the former Mexican land base presently comprising the American Southwest. The second examines a class of "agricultural underdogs" that provided their labor to the nation's food production systems during wartime. Both articles bring real life consequences impacting our communities of color generally but gente of Mexican descent specifically. The authors' treatment of difficult questions however, extends legal engagement that demands compensation for past injuries with consequences into the present. Their assertions of …

How The Border Crossed Us: Filling The Gap Between Plume V. Seward And The Dispossission Of Mexican Landowners In California After 1848, Kim David Chanbonpin

Cleveland State Law Review

The goal of this paper is to show how the rule in Plume v. Seward and the actual practice of the Board of Land Commissioners in California at the time are not in synch. In Section II, I provide the historical background to the United States imperialist goal of Manifest Destiny. This section also gives a factual introduction to Plume and the procedure of the Board of Land Commissioners. Section III contrasts the result in Plume with the outcomes in the Board's decisions in factually similar land claims. Section IV analyzes the Guadalupe-Hidalgo Treaty Land Claims Act proposed to Congress …

Review Of Refuge Of A Scoundrel: The Patriot Act In Libraries, Glenda A. Thornton

Michael Schwartz Library Publications

Review of Refuge of a Scoundrel: The Patriot Act In Libraries

Chazakah: Judaic Law's Non-Adverse Possession, Joshua A. Klarfeld

Cleveland State Law Review

This article questions the current doctrine of adverse possession. Rather than viewing adverse possession as a method of acquiring land, adverse possession should instead create a rebuttable presumption of ownership. Section II of this article describes adverse possession and outlines its elements. This section, in describing how the doctrine works, provides a framework for discussing how and why the law should change. Section III of this article describes chazakah. Unlike adverse possession, chazakah serves not as a tool by which a person acquires land, but instead creates a presumption of ownership. The true owner, however, may rebut that presumption. Chazakah …

No Value For A Pound Of Flesh: Extending Marketinalienability Of The Human Body, Andrew Wancata

Journal of Law and Health

In the United States and many countries throughout the world, selling non-regenerative organs for monetary gain constitutes a serious criminal offense. Notwithstanding this strong ban on the sale of organs, United States citizens are permitted to sell other "parts" of their bodies, including blood, sperm, and eggs ("ova"), for market value because current statutes do not consider reproductive cells and other regenerative tissue "organs" or even within the ambit of "parts." Rather, in most contexts, regenerative cells and tissue are though of as "products" of the human body. In fact, the United States remains one of only a few industrialized …

Resolving Disputes Over Excess Frozen Embryos Through The Confines Of Property And Contract Law, Shelly R. Petralia

Journal of Law and Health

This Article addresses the conflicts that arise due to the increased number of cryogenically frozen embryos produced during in vitro fertilization (IVF). Part I discusses the IVF process, in general. While it recognizes the man's role in the process, it focuses primarily on the physical and emotional hardships that are placed on the woman. Part I also gives the backdrop of the case law in the area of embryo distribution. Part II introduces the idea that an embryo should be reduced to private property, through utilization of the labor and economic theories of property law. Additionally, an embryo's use, rather …

Risk Management For Land Use Regulations: A Proposed Model , Kenneth G. Silliman

Cleveland State Law Review

This Article constructs a conservative legal framework to guide planners in conventional planning activities. It further proposes that planners should apply the model to these conventional activities, but work closely with the municipal attorney before adopting more innovative and controversial planning devices.This Article proceeds in four major sections. Section I commences, with historical reviews: major changes in land use planning within the last 50 years, the land development problems associated with those changes, and judicial responses to these same problems. Comparisons are frequently made between cases from a rustbelt Midwestern state (Ohio) and cases from a faster growing sunbelt state …

A Child Conceived After His Father's Death: Posthumous Reproduction And Inheritance Rights - An Analysis Of Ohio Statutes, Cindy L. Steeb

Cleveland State Law Review

This Article will argue that the posthumous child and the rights and responsibilities relating to such a child, are directly related to the fundamental right to procreate, thus statutes must support rather than prohibit posthumous conception. It will argue that legislation must necessarily incorporate that right in determining issues and forming legislation related to the posthumous child. It will show that current legislation, both the various Uniform Codes and Ohio's Revised Code, is not sufficient to protect and provide for this new class of children. In reaching this conclusion, Part II of this Article will review the history of artificial …

Predatory Lending: Practices, Remedies And Lack Of Adequate Protection For Ohio Consumers, Anna Beth Ferguson

Cleveland State Law Review

This note focuses on remedies available to borrowers who fall prey to predatory lending practices on their home equity loans where their homes are used as collateral. Part II gives basic background information on predatory lending: what predatory lending is, examples of common predatory lending techniques, and, who benefits and who is hurt by predatory lending practices. Part III discusses and critiques current federal laws that borrowers have used to combat predatory mortgage lending practices. Part IV explains the current forms of relief available in Ohio and the limitations of these remedies. Part V discusses remedies in other states, focusing …

Kass V. Kass, Blazing Legal Trails In The Field Of Human Reproductive Technology, Kelly Summers

Cleveland State Law Review

The decision in Kass illustrates a situation where well-founded common law contract principles were applied to a novel reproductive issue in order to respond to rapidly evolving technological progress. However, this legal dilemma presents a variable that warrants special attention. The parties involved in the case at hand struggled for control of a possible human life; Mrs. Kass hoped to preserve the pre-zygotes for future implantation attempts, and Mr. Kass sought to avoid the tribulations associated with compulsory parenthood. This Comment will evaluate the decisions rendered by both the Supreme Court of New York and the New York Court of …

The Stolen Museum: Have United States Art Museums Become Inadvertent Fences For Stolen Art Works Looted By The Nazis In Word War Ii?, Barbara Tyler

Law Faculty Articles and Essays

This Article begins with some historical background surrounding the Nazi pillaging of several family collections which may have found their way into American museums. The Article then focuses on what legal and equitable doctrines should be employed in the search for justice in ownership of art works in the United States. The Article advocates that American lawmust prevail. It must be modified to reject the due diligence rule for replevin. Replevin maintains that good intentions alone cannot abrogate the doctrine of bona fide purchaser: a thief can never pass clear title to stolen property to any subsequent transferee no matter …

The Tax Status Of Ohio Property Used For Low-Income Housing, Christopher P. Conomy

Cleveland State Law Review

This Note argues that the rule denying property tax exemption to low-income housing units is improper. The rule is improper in three significant regards. First, as a matter of social and public policy, the rule is misguided, because it hinders the fulfillment of an important need in Ohio and in American society at large. Second, as a purely legal matter, the original rule denying exemption for these properties resulted as a mistaken application of the existing law regarding the definition of "charitable" use. The third, and most compelling reason, is that the legal basis underlying the original rule has undergone …

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part …

The Parma Housing Racial Discrimination Remedy Revisited, W. Dennis Keating

Cleveland State Law Review

In 1980, the city of Parma, Ohio, Cleveland's largest suburban city was found guilty of violating the Fair Housing Act. Along with the Gautreaux, Mt. Laurel, and Yonkers cases, the Parma case represents a longstanding remedy aimed at eliminating a pattern and practice of municipal discrimination in housing. It raises the issue of how far courts and the federal judiciary in particular, are willing and able to go in order to address systematic patterns of housing segregation. This article reviews the original decision and its appeal, the implementation of the original remedy, and the more recent remedy and its prospects …

Essay: Some Thoughts On The Relationship Between Property Rights And Immigration Policy, Robert W. Mcgee

Cleveland State Law Review

Most articles and books that have been written on immigration policy start from a utilitarian position. They discuss issues such as whether immigration, on balance, is more harmful than beneficial, and whether allowing immigrants into the country results in job losses, increases in welfare costs, aids in economic growth, and so forth. This article is distinctly different in focus. Although utilitarian themes are discussed, this article places the main emphasis on the relationship between property rights and immigration policy.

Harmful Use And The Takings Clause In The Eye Of The Beholder: Lucas V. South Carolina Coastal Council, Charles H. Clarke

Cleveland State Law Review

Whichever of these two possibilities prevails, both possibilities require the courts to perform essentially legislative functions regardless, in other words, of whether public ecological resources receive insufficient or ample protection from private enterprise that wants to consume them. The traditional Takings Clause precedents, on the other hand, would give public ecological resources and private property ample protection with minimum judicial oversight. The traditional position seems preferable for this reason.

Frozen Embryos: What Are They And How Should The Law Treat Them, Michelle F. Sublett

Cleveland State Law Review

This note is concerned with the question currently facing the courts: once an embryo is frozen, what should become of it in a dispute over what should happen to it, and who has the right to make that decision? In addressing this question, this note will first establish the process through which frozen embryos are created, and the resulting dilemma of definitional problems among the medical and legal professions. Next the article will survey the current state of the law to discover how prenatal beings have been treated traditionally, how this should affect frozen embryo disposition, and how trends are …

How Much Of You Do You Really Own - A Property Right In Identity, Kathleen Birkel Dangelo

Cleveland State Law Review

An individual's identity is comprised of many different characteristics. The law has historically recognized the existence of a property right in certain characteristics of an individual, such as name and likeness. This recognition was premised on the idea that these characteristics comprise the essence of a person's identity and therefore, should be protected against appropriation by others. A problem in this area, however, has been the confusion among property, privacy, and publicity rights. Each of these rights touches the area of personal characteristics; however, the focus of each right is on a distinct area. The confusion between these rights has …

How To Do A Perpetuities Problem, John Makdisi

Cleveland State Law Review

The most difficult aspect of the rule against perpetuities is figuring out a sure-fire way to determine whether an interest created in a conveyance is valid or invalid. The meaning of the rule itself is not hard to fathom. Whenever the interest might vest too remotely it is invalid, and it becomes possible to vest remotely if there is a chance that it could vest more than twenty-one years after everyone alive at the time of the conveyance has died. Whether the interest violates the rule against perpetuities is determined at the moment the conveyance creating the interest becomes effective. …

Ohio Landlord-Tenant Reform Revisited, Edward G. Kramer, Marilyn Tobocman, Kenneth J. Kowalski, James Buchanan

Cleveland State Law Review

The "gentle readers" may be surprised by the analogy suggested between the reform of landlord-tenant law and the experience of Alice and the Queen. However, the events surrounding the enactment of Amended Substitute Senate Bill 103 were as perplexing as those in Lewis Carroll's story. Those opposing real reform, principally the real estate industry, were successful in weakening the proposed legislation. Consequently, the primary goal of the sponsors of landlord-tenant legislation in Ohio was not met by the legislation finally enacted. As this Article will demonstrate, the interpretation of the Act by the courts of Ohio has proven true the …

Shufcah: Origins And Modern Doctrine, Farhat J. Ziadeh

Cleveland State Law Review

Shufah is an excellent example of the continuity of an Islamic institution and of the capacity of that institution for change. Although it is not, strictly speaking, a part of personal status law, which is said to be the only part of Islamic law that is being applied in Islamic countries, it has survived in a recognizable form. Islamic countries, in their attempts at law reform, have effected little change in the traditional law of personal states, only after heated discussions and controversy. On the other hand, profound changes were introduced into the traditional law of preemption with little controversy. …

Access To Sunlight In Ohio: The Dismal Outlook, Amy E. Blenkhorn

Cleveland State Law Review

This Note will trace the evolution of access-to-sunlight issues and the enactment of new laws in the solar-access area, with primary focus on Ohio's treatment of the issues. A brief historical review will be included as well as data relating to the feasibility of using solar energy in Ohio. A critical analysis of the recent Ohio Solar Easement Statute also will be presented. Solar statutes and case law of other states and policies of the federal government and foreign governments will be scrutinized. These findings will be examined in an attempt to forecast whether Ohio should adopt or reject various …

Judicial Remedies In Pattern And Practice Suits Under The Fair Housing Act Of 1968: United States V. City Of Parma, Karen E. Rubin

Cleveland State Law Review

The elimination of racially segregated housing is a national goal of high priority. This goal is reflected in the pronouncements of law-makers and policy shapers, in decisional law, and in the existence of federal and state legislation designed to eradicate ghettos and replace them with "truly integrated and balanced" communities. Yet segregated housing patterns persist, often finding their source and legitimization in the policies and practices of local governments. This Note will examine an Ohio decision, United States v. City of Parma, and its impact on two issues: the bringing of a "pattern and practice" suit under Title VII of …